Punjab-Haryana High Court
Chief Administrator vs Mrs. Geeta Devi And Others on 31 July, 2012
Author: Rajiv Narain Raina
Bench: Hemant Gupta, Rajiv Narain Raina
LPA No.812 of 2012 (O&M)
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
LPA No.812 of 2012 (O&M)
Date of Decision: 31.07.2012
Chief Administrator, Faridabad Complex Administration, Faridabad now
Municipal Corporation, Faridabad through Establishment Officer,
Municipal Corporation, Faridabad
..... Appellant
Versus
Mrs. Geeta Devi and others ..... Respondents
CORAM:- HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. Narender Hooda, Sr. Advocate,
with Mr. Sudhir Kumar Hooda, Advocate,
for the appellant.
1. To be referred to the Reporters or not?
2. Whether the judgment should be reported in the Digest?
RAJIV NARAIN RAINA, J.
This intra court appeal is directed against the order of the learned Single Judge dated 29.11.2011 directing the respondent-State to calculate and release monetary benefits to the legal representatives of the deceased writ petitioner by treating him as having been promoted on 23.05.1975 as a Senior Sanitary Inspector. The writ petitioner was ignored for promotion at the time when his juniors were promoted as he was then out of service and pursuing litigation against the termination order dated 05.07.1975. It is not in dispute that against the termination order, the writ petitioner had filed CWP No.772 of 1977 which was allowed by this Court on 01.09.1983 and the petitioner was taken back in service. It was also not disputed that Mr. M.C. Mishra and Mr. R.S. Bidlan were promoted as Sr. Sanitary Inspector vide order dated 23.5.1975. On his return to service, the petitioner LPA No.812 of 2012 (O&M) -2- represented against his supersession and i.e. actual promotion to the higher post on 12.05.1988 should be antedated since he was senior to the said two officials in the feeder cadre. The rejection of his request had brought the petitioner before the learned Single Judge.
We have heard Mr. Narender Hooda, Senior Advocate with Mr. Sudhir Kumar Hooda, Advocate for the appellant.
The order of rejection of representation records the reason for supersession that on account of perusal of the personal record, writ petitioner was ignored for promotion and, therefore, his regular promotion on 11.08.1988 was an order but what is tacitly admitted in this petition is that Mr. M.C. Mishra and Mr. R.S. Bidlan were junior to him.
We find on a reading of Para 4 of the written statement filed by the contesting respondent that the rule of promotion from the lower post of Sanitary Inspector to the higher post of Senior Sanitary Inspector was based on seniority-cum-merit but the stand is that Mr. M.C. Mishra and Mr. R.S. Bidlan were promoted on the recommendations of a Selection Committee and while making their promotion, the name of the petitioner was also considered by the Selection Committee but the petitioner was not selected and he was infact ignored in preference to Mr. M.C. Mishra. It was however been stated that Mr. M.C. Mishra was senior to the petitioner but Mr. R.S. Bidlan was junior to him and Mr. R.S. Bidlan was promoted on merit. Since both Mr. M.C. Mishra and Mr. R.S. Bidlan were promoted on the same day, the writ petitioner would have a claim of promotion qua Mr. R.S. Bidlan. We find that there is a serious flaw in the stand of the appellant in the written statement filed in support of his actions. When the principle of LPA No.812 of 2012 (O&M) -3- promotion was seniority-cum-merit, there is hardly any rule of treating the promotion as one to a selection post. The principle of promotion was not merit-cum-seniority. The post of Senior Sanitary Inspector was not a selection post. It was a non-selection post. The difference between the rule of seniority-cum-merit and merit-cum-seniority has engaged the attention of the Supreme Court in several cases including Ajit Singh (II) vs. State of Punjab, (1999) 7 SCC 209. The relevant para 23 is reproduced below:-
"23. Where promotional avenues are available, seniority becomes closely interlinked with promotion provided such a promotion is made after complying with the principle of equal opportunity stated in Article 16(1). For example, if the promotion is by rule of "seniority-cum-suitability", the eligible seniors at the basic level as per seniority fixed at that level and who are within the zone of consideration must be first considered for promotion and be promoted if found suitable. In the promoted category they would have to count their seniority from the date of such promotion because they get promotion through a process of equal opportunity. Similarly, if the promotion from the basic level is by selection or merit or any rule involving consideration of merit, the senior who is eligible at the basic level has to be considered and if found meritorious in comparison with others, he will have to be promoted first. If he is not found so meritorious, the next in order of seniority is to be considered and if found eligible and more meritorious than the first person in the seniority list, he should be promoted. In either case, the person who is first promoted will normally count his seniority from the date of such promotion. (There are minor modifications in various services in the matter of counting of seniority of such promotees but in all cases the seniormost person at the basic level is to be considered first and then the others in the line of seniority.) That is how right to be considered for promotion and LPA No.812 of 2012 (O&M) -4- the "seniority" attached to such promotion become important facets of the fundamental right guaranteed in Article 16(1). Right to be considered for promotion is not a mere statutory right"
If the name of the petitioner was also considered in 1975 and he was ignored on account of "personal record" no material was placed before the learned Single Judge or on the file of this case with respect thereto and whether there was sufficient justification for passing the petitioner over. Since the petitioner was not available on 23.05.1975 being out of service, his case could have at best to put under sealed cover. No such sealed cover was also produced on the record of this case. We have found that fit to examine this issue with regard to principle of promotion though not dealt with by the learned Single Judge. We feel that these principles would govern the result of this litigation. In State of Kerala and another vs. N.M. Thomas and others (1976) 2 SCC 310, a seven Judge Bench of the Supreme Court considered the impact of principle of seniority-cum-merit and held that seniority-cum-merit means that given the minimum necessary merit requisite for efficiency of administration, the senior though less meritorious shall have priority and this course would not violate Articles 14, 16(1) and 16(2) of the Constitution. We, therefore, find nothing wrong in the conclusion reached by the learned Single Judge in awarding monetary benefits to the legal representatives of the deceased writ petitioner.
Dismissed.
(HEMANT GUPTA) JUDGE (RAJIV NARAIN RAINA) LPA No.812 of 2012 (O&M) -5- 31.07.2012 JUDGE manju